FILED
NOT FOR PUBLICATION APR 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB BARRETT, No. 11-35238
Plaintiff - Appellant, D.C. No. 3:06-cv-00510-JE
v.
MEMORANDUM*
BRIAN BELLEQUE; J. NOFZIGER;
REBECCA PRINSLOW; GARY
RUSSELL; J. TAYLOR; KENT
PARKER, Lt.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted March 9, 2012
Portland, Oregon
Before: W. FLETCHER, FISHER and BYBEE, Circuit Judges.
Jacob Barrett appeals the judgment of the district court dismissing his 42
U.S.C. § 1983 action alleging violations of the First Amendment arising from
disciplinary action taken against him for letters he wrote while a prisoner at the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Oregon State Penitentiary (OSP). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. The district court properly dismissed Barrett’s claims for declaratory
and injunctive relief as moot. Barrett is no longer affected by the Oregon
Department of Corrections’ (ODOC) policies concerning outgoing inmate mail
because he is currently housed at a prison in Oklahoma. See Alvarez v. Hill, 667
F.3d 1061, 1063-65 (9th Cir. 2012); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir.
1995) (“An inmate’s release from prison while his claims are pending generally
will moot any claims for injunctive relief relating to the prison’s policies . . . .”).
The Oregon Supreme Court’s decision in Barrett v. Belleque, 176 P.3d 1272,
1276-77 (Or. 2008), is distinguishable because Barrett has not shown that the
disciplinary action challenged here has collateral consequences for him in
Oklahoma.
The mootness exception for controversies that are capable of repetition yet
evading review does not apply because there is no reasonable expectation that
Barrett will be transferred back to the OSP and subjected again to the outgoing
mail policies he challenges in this litigation. See Dilley, 64 F.3d at 1369. Even if
there were such an expectation, there is no reason to believe that a federal lawsuit
challenging his discipline could not be litigated to completion before his transfer to
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another facility. See id. We recognize that the capable of repetition exception can
apply to an Oregon inmate who has been transferred to a prison in another state
under the Interstate Corrections Compact. See LeMaire v. Maass, 12 F.3d 1444,
1462 & n.5 (9th Cir. 1993). Here, however, there is no reasonable expectation that
Barrett will be returned to the OSP. Cf. id. at 1462 (“If [the plaintiff] resumes his
old ways, no doubt he may return yet again to the [OSP’s Disciplinary Segregation
Unit].”). Nor does this case involve an “ongoing” injunction applying to the
plaintiff and to “all persons similarly situated.” Id. at 1450, 1462 n.5.
2. The district court properly granted summary judgment to the
defendants on Barrett’s claim for damages because the defendants are entitled to
qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The
doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))).
Procunier v. Martinez, 416 U.S. 396, 415-16 (1974), overruled on other
grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989), established that prison
officials cannot censor outgoing inmate mail merely because it contains
exaggerated complaints; magnified grievances; expressions of inflammatory
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political, racial or religious views; unwelcome criticism of policies, rules or
officials; or disrespectful comments. Procunier, however, did not address whether
inmates can be disciplined for posting letters directing hostile and abusive
language to and at prison staff, which the defendants here reasonably believed
Barrett to have done. Rules prohibiting inmates from directing disrespectful
comments toward staff indisputably further legitimate penological interests in
security, order and rehabilitation. See Bradley v. Hall, 64 F.3d 1276, 1280 (9th
Cir. 1995), abrogated on other grounds by Shaw v. Murphy, 532 U.S. 223 (2001).
Procunier also did not address whether an inmate can be disciplined for
posting letters that endorse a white supremacist prison gang that prison officials
have identified as a security threat group (STG). ODOC had identified Barrett as a
member of the Aryan Soldiers, a white supremacist STG. The defendants could
have reasonably believed that disciplining Barrett for posting letters expressing
support and endorsement for his STG furthered an important penological interest in
rehabilitation. The defendants are therefore entitled to qualified immunity.
Because we hold that the defendants did not violate a right that was clearly
established at the time of their conduct, we do not address whether their conduct
violated the First Amendment. See Pearson, 555 U.S. at 232, 236 (describing the
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two prongs of the qualified immunity analysis and holding that courts have
discretion in deciding which of the two prongs should be addressed first).
AFFIRMED.
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